Monday Morning Answers

Last Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Michael Kiey
  • Hal Miller, First American
  • Herb Ogden
  • Ian Sullivan, Deputy State’s Attorney, Rutland County

Answers

Question 1

How many hours of pro bono publico legal services per year do Vermont lawyers have a responsibility to provide?

Per Rule 6.1, a lawyer should render at least 50 hours of pro bono publico legal servicers per year.

Question 2

Last Saturday, Attorney volunteered at a free legal clinic that was offered under the auspices of a program sponsored by a non-profit.  While there, Attorney answered questions from Tenant on issues related to Tenant’s eviction.

Attorney works at Firm.  On Monday, Attorney learned that her Law Partner represents Landlord in the eviction of Tenant.

Which is most accurate under Vermont’s rules?

  • A.   Attorney violated the rules, but Law Partner may continue to represent Landlord.
  • B.   Attorney violated the rules and Law Partner must withdraw from representing Landlord.
  • C.  Attorney did not violate the rules and Law Partner may continue to represent Landlord.  See, Rule 6.5(a).  
  • D.  Attorney did not violate the rules, but Law Partner must withdraw from representing Landlord.

The key here is that the conflicts rules are relaxed at clinics/programs sponsored under the auspices of a court or nonprofit.  Essentially, no conflict checks required.  Here, Attorney would’ve been on the hook only if she knew that Tenant was adverse to Law Partner’s client.  Finally, despite Attorney providing pro bono services to Tenant, Law Partner may continue to represent Landlord.  See, Comment 4.

Question 3

Shakedown 1979, cool kids never have the time.

Justine and Billy are in the process of divorcing.   Attorney has represented Justine since the divorce was filed 1 year ago.  Billy has represented himself.

Yesterday, Billy met with Lawyer to discuss potential representation in the divorce.  Lawyer is married to Attorney.  The two do not work in the same firm.

Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.   Lawyer may represent Billy.
  • B.   Lawyer may represent Billy if Justine agrees to Lawyer’s involvement. .
  • C.   Lawyer may not represent Billy.
  • D.   Ordinarily, to continue with their respective representations, Lawyer needs informed consent from Billy, and Attorney needs informed consent from Justine.  See, Rule 1.7, Comment [11] (“a lawyer related to another lawyer, e.g., as a parent, child, sibling, spouse or civil union partner, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each gives informed consent.”)

Question 4

Firm advertises as “the premier family law firm in the county.”  New Lawyer joins Firm. New Lawyer has limited experience in family law matters, but is assigned to handle Client’s contentious divorce.

Before New Lawyer joined Firm, Client and Firm had agreed, in writing, to a $10,000 flat fee.  Client paid the entire sum in advance and Firm deposited the funds into the Firm’s operating account.

Two months into the matter, Client learned that Firm’s managing partner plays in a weekly pick-up basketball game with Client’s Spouse.  Firm has screened Managing Partner from any involvement in Client’s matter.

If Client files a complaint against any lawyer in Firm, which issue would disciplinary counsel most likely consider to be a violation?

  • A.  The so-called “screen.”  Vermont’s rules do not allow screening and impute Managing Partner’s conflict to New Lawyer.
  • B.   The fee agreement & deposit of Client’s payment into the operating account
  • C.  Firm’s advertisement.
  • D.  New Lawyer’s inexperience.

A is incorrect. If anything, Managing Partner’s basketball game creates a personal conflict that is not imputed to other lawyers in Firm. See, Rule 1.10(a).

B is incorrect. The agreement complies with Rules1.5(f) & (g) and must not go into trust.

 D is incorrect (at least on the facts).  See Rule 1.1, Comment [2] (“a newly admitted lawyer can be as competent as a practitioner with long experience]; Rule 1.1, Comment [4] (“A lawyer may accept representation where the requisite level of competence can be achieved through reasonable preparation.”)

That leaves C.  Generally, a lawyer may not advertise in such a way as to make unsubstantiated comparisons to other lawyers.  The phrase “the premier family law firm in the county” violates Rule 7.1.  See, PRB Decision 85 (lawyer admonished for advertising as county’s “premier criminal defense firm.”)

Question 5

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

A Tale of Two Cities, by Charles Dickens.   

Bonus: name the lawyer who “mentored” Carton.  Barrister Stryver.

On a serious note, if you know a lawyer who, like Carton, is dealing with substance abuse or mental health issues, please read this.

Tale of Two Cities

Advertisements

Five for Friday #79

Welcome to Five for Friday #79!

So, 79’s got a lot going on.  I’ll always associate 79 with the iconic clash between Magic Johnson & Larry Bird.  Before taking their star turns in the Lakers-Celtics rivalry, the two first squared off in the championship game of the 1979 NCAA Basketball Tournament. Whether you love or hate March Madness pools, as Michael Wilbon explains, you probably have the 79 title game to thank or to blame..

The game was played on March 26, 1979.  I was just a kid, but I remember exactly where I was when I watched it:  Washington, D.C.  What was I doing there? My parents drove my brother & I to witness history!

No, not the game.  The game was played in Salt Lake City.

However, earlier that day in D.C., Menachem Begin & Anwar Sadat signed the Israel-Egypt Peace Treaty at a White House ceremony hosted by President Carter. Along with our parents, my brother and I watched from Lafayette Square.

I’m fairly certain that the worst seat for the Bird-Magic game was infinitely better than our vantage point for the signing ceremony.  But we were there!  For those of you who know my mom, ask her about the hotel she booked us for that trip.  Don’t stand too close when you ask.

Finally,79 is a Sexy Prime.

Get your heads out of the gutter! This is a family blog!

Sexy Primes are prime numbers that differ from each other by 6.  And 79 ain’t just any ol’ sexy prime.  Along with 67 & 73, 79 is a Sexy Prime Triplet.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome
  • E-mail answers to michael.kennedy@vermont.gov
  • Please use e-mail, not the “comment” feature
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Hashtag it on social media as #fiveforfriday

Question 1

How many hours of pro bono publico legal services per year do Vermont lawyers have a responsibility to provide?

Question 2

Last Saturday, Attorney volunteered at a free legal clinic that was offered under the auspices of a program sponsored by a non-profit.  While there, Attorney answered questions from Tenant on issues related to Tenant’s eviction.

Attorney works at Firm.  On Monday, Attorney learned that her Law Partner represents Landlord in the eviction of Tenant.

Which is most accurate under Vermont’s rules?

  • A.   Attorney violated the rules, but Law Partner may continue to represent Landlord.
  • B.   Attorney violated the rules and Law Partner must withdraw from representing Landlord.
  • C.  Attorney did not violate the rules and Law Partner may continue to represent Landlord.
  • D.  Attorney did not violate the rules, but Law Partner must withdraw from representing Landlord.

Question 3

Shakedown 1979, cool kids never have the time.

Justine and Billy are in the process of divorcing.   Attorney has represented Justine since the divorce was filed 1 year ago.  Billy has represented himself.

Yesterday, Billy met with Lawyer to discuss potential representation in the divorce.  Lawyer is married to Attorney.  The two do not work in the same firm.

Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.   Lawyer may represent Billy.
  • B.   Lawyer may represent Billy if Justine agrees to Lawyer’s involvement. .
  • C.   Lawyer may not represent Billy.
  • D.   Ordinarily, to continue with their respective representations, Lawyer needs informed consent from Billy, and Attorney needs informed consent from Justine.

Question 4

Firm advertises as “the premier family law firm in the county.”  New Lawyer joins Firm. New Lawyer has limited experience in family law matters, but is assigned to handle Client’s contentious divorce.

Before New Lawyer joined Firm, Client and Firm had agreed, in writing, to a $10,000 flat fee.  Client paid the entire sum in advance and Firm deposited the funds into the Firm’s operating account.

Two months into the matter, Client learned that Firm’s managing partner plays in a weekly pick-up basketball game with Client’s Spouse.  Firm has screened Managing Partner from any involvement in Client’s matter.

If Client files a complaint against any lawyer in Firm, which issue would disciplinary counsel most likely consider to be a violation?

  • A.  The so-called “screen.”  Vermont’s rules do not allow screening and impute Managing Partner’s conflict to New Lawyer.
  • B.   The fee agreement & deposit of Client’s payment into the operating account
  • C.  Firm’s advertisement.
  • D.  New Lawyer’s inexperience.

Question 5

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

Bonus: name the lawyer who “mentored” Carton.

On a serious note, if you know a lawyer who, like Carton, is dealing with substance abuse or mental health issues, please read this.

the-quiz

 

Online Legal Research: is there an affirmative duty to use more than one research platform?

Earlier this week, Robert Ambrogi posted Turns Out Legal Research Services Vary Widely in Results.  Ambrogi, one of the leading commentators on legal technology, wrote:

  • “Call me naive, but I would have thought that entering the identical search query on, say, both Westlaw and Lexis Advance would return fairly similar results, at least among the cases ranked highest for relevance. After all, shouldn’t the cases that are most relevant to the query be largely the same, regardless of the research platform?”

Then, he added:

  • “Turns out, the results they deliver vary widely — not just between Westlaw and Lexis Advance, but among several legal research platforms. In fact, in a comparison of six leading research platforms — Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel and Westlaw — there was hardly any overlap in the cases that appeared in the top-10 results returned by each database.”

Ambrogi’s post referred to Susan Nevelow Mart’s research paper The Algorithm as a Human Artifact: Implications for Legal {Re}search.   Mart is the Director of the Law Library and an Associate Professor at the University of Colorado Law School.

In this column that he wrote for Above The Law, Ambrogi dove deeper in Professor Mart’s findings.  Before I talk about the findings, I want to go back to my post Are Robots Nonlawyer Assistants.  

In my post, I suggested that lawyers who use artificial intelligence to perform “mundane legal tasks” might have an affirmative duty under the Rules of Professional Conduct “to have some sort of understanding of the coder’s qualifications.”  Well, as it turns out, a similar notion underpins Professor Mart’s research.

As Ambrogi reports, several years ago, a senior VP at Westlaw informed Professor Mart that the company’s “algorithms are created by humans.”  Mart, then, theorized that the choices that a human makes in creating an algorithm will necessarily influence the results delivered by the algorithm.  In other words, that the coder’s biases & assumptions will find their way into the algorithm and impact the results.  She set out to study her hypothesis.

Mart’s findings are eye-opening.  Using the same query across 6 providers – Casetext, Fastcase, Google Scholar, LexisAdvance, Ravel and Westlaw – she found that among the top 10 cases returned by each:

  • on average, 40% of the cases were returned by only 1 provider;
  • 7% of the cases were returned by all 6 providers.

I could go on & on.  Here’s the upshot, in an excerpt of the abstract from Professor Mart’s paper:

  • When legal researchers search in online databases for the information they need to solve a legal problem, they need to remember that the algorithms that are returning results to them were designed by humans. The world of legal research is a human-constructed world, and the biases and assumptions the teams of humans that construct the online world bring to the task are imported into the systems we use for research. This article takes a look at what happens when six different teams of humans set out to solve the same problem: how to return results relevant to a searcher’s query in a case database. When comparing the top ten results for the same search entered into the same jurisdictional case database in Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw, the results are a remarkable testament to the variability of human problem solving. There is hardly any overlap in the cases that appear in the top ten results returned by each database. An average of forty percent of the cases were unique to one database, and only about 7% of the cases were returned in search results in all six databases. It is fair to say that each different set of engineers brought very different biases and assumptions to the creation of each search algorithm. One of the most surprising results was the clustering among the databases in terms of the percentage of relevant results. The oldest database providers, Westlaw and Lexis, had the highest percentages of relevant results, at 67% and 57%, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were also clustered together at a lower relevance rate, returning approximately 40% relevant results.

Most importantly, here’s the ethics hook:  Rules 1.1 & 1.3 require lawyers to provide competent & diligent representation. Knowing that results vary widely by provider, do Rules 1.1 and 1.3 require lawyers to use more than one provider when conducting online legal research?

Although I’ve not yet had my daily requirement of coffee, my initial reaction is that it’d be much easier to argue “yes” than to argue “no.”  Actually, the real answer might be that it’s neither competent nor diligent for a lawyer to limit research to the first 10 results to a single query.

Indeed, in the abstract to her paper, Professor Mart notes:

  • “Legal research has always been an endeavor that required redundancy in searching; one resource does not usually provide a full answer, just as one search will not provide every necessary result. The study clearly demonstrates that the need for redundancy in searches and resources has not faded with the rise of the algorithm. From the law professor seeking to set up a corpus of cases to study, the trial lawyer seeking that one elusive case, the legal research professor showing students the limitations of algorithms, researchers who want full results will need to mine multiple resources with multiple searches.”

Anyhow, I was excited to post this, but now I can’t think of a creative way to wrap it up or to make a point.  I guess my point is this: know that online legal research services aren’t perfect.

Finally, maybe Professor Mart’s findings are a new twist on something that’s been going on forever.   I’m reminded of thinking “what the _____?” when I pulled a case that did not “follow” the case that I’d been thrilled to find, even though Shepard’s had promised me (with an “f”) that it would.  The human who coded it was, in fact, only human.

shepards

 

W.I.N. Your 3 Feet of Influence

When I was coaching, I used the term “W.I.N.” wth my teams.  It stands for “what’s important now?”  Here’s what it means.

In sports, as in life, we can only control what we can control.

Basketball players can’t control a ref’s calls.  But they can control how they react to bad calls.  A player can’t control (or change) the fact that he just made a bad play.  But he can control how he approaches the next play.  A player can’t control whether a teammate works hard in drills.  But he can control his own effort.

What’s Important Now is controlling whatever you can control . . . right now.  In basketball, that means, playing the next play without worrying about the last or looking forward to one later in the game.

Bad call goes against you?  Yelling at the ref is not what’s important now.  What’s important now?  The next play.  Make a bad turnover?  Hanging your head is not what’s important now.  What’s important now? Sprinting back on defense to stop the opponent who stole your pass.

You get the picture.

Last weekend, my dad’s wife shared Sharon Salzburg’s Your Three Feet of Influence with me.  I loved it.  Here’s my favorite quote from the blog post:

It reminded me of W.I.N?  None of us can control how others act or treat us.  But every single one of us can control our response to how others act and treat us.  And isn’t that almost always what’s important now?

As I thought about it, I thought back to my post President’s Day & Civility.  It’s a post in which I referred to Linda Klein’s President’s Message in the February edition of the ABA Journal:  One Word: Civility.  Please read it.

President Klein wrote:

  • “As leaders in society, lawyers must ensure that civility once again becomes a quality that defines us. We need to set the tone for constructive communication and rational decision-making. It starts with us and every individual committing to a more civil manner, insisting that civility be a part of meetings and interactions. Indeed, we need to hold ourselves and our leaders to a higher standard.”

What’s Important Now?  That in the next interaction I have with someone, I’m going to commit to a civil, honest, respectful communication – – regardless of how that person treats me.  I can’t control how that person acts, but I can control how I act.

Opposing counsel acts like a jerk on the phone, sends a rude e-mail, or says bad things about you in court?  You can’t control that.  But you can absolutely control how you respond.

Finally, I’m especially struck by the fact that I’m writing this as I proctor the bar exam. Civility is as important a skill as is a basic knowledge of evidence, contracts, or civil procedure.  As much as I hope that each examinee passes the exam, I’m as hopeful that, upon admission, each practices law by continually striving to W.I.N. his or her 3 feet of influence.  It would make the profession better and serve as an example to all.

Whatever you do next, try to W.I.N. your 3-feet of influence.  It’ll add up.

Civility

The Vermont Bar Exam

The Vermont Bar Exam is today and tomorrow.  To paraphrase Blues Image, at 9:30 this morning, 73 aspiring lawyers sailed off into the first segment of the exam.  Here’s wishing them fair winds and following seas.

For those of you curious as to how the exam is structured now that we’ve moved to the Uniform Bar Exam, take a look at this post from February.

 

bar-exam

Monday Morning Answers – #78

Friday’s quiz is here.  Today, the answers follow the Honor Roll.

And today’s Honor Roll includes something special.  For quite some time, Laura Gorsky regularly appeared on the Honor Roll while studying & working in the 4-year Law Office Study program.  She was recently admitted to the bar and, today, makes her first Honor Roll appearance as a full-fledged attorney.  Congratulations Laura!

Honor Roll

  • Carolyn Browne Anderson, Green Mountain Power; Vermont PRB
  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor, John Marshall School of Law
  • Lindsay Cabreros, First American
  • Beth DeBernardi, ALJ, Department of Labor
  • Laura Gorsky, Esq., Law Office of David Sunshine
  • Robert Grundstein
  • Anthony Iarrapino, Esq
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, Dealer.Com
  • Tom Little, Esq.
  • Jeffrey Messina, Bergeron Paradis & Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Runcie & Ouimette

Answers

Question 1

By rule, a lawyer has a conflict if there is a significant risk that the representation of a client will be limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.  Rule 1.7

Your mission, should you choose to accept it, fill in at least ONE of the blanks. (hint: each blank is more than 1 word)

Question 2

Remaining on conflicts for a moment, a Comment indicates that ” ________  ___________ requires that each affected client be aware of the relevant circumstances of the material and reasonably forseeable ways that the conflict could have adverse effects on the interests of that client.”

Which fills in the blank verbatim?

  • A.    Dual Representation
  • B.     Informed Consent; Rule 1.7, Comment [18]
  • C.    Continued Representation
  • D.   Conflict Waiver

Question 3

Which type of fee agreement is different from the others?

  • A.   Contingent fee agreement
  • B.   An agreement to a non-refundable fee, paid in advance, that a lawyer may treat as the lawyer’s property before any legal services are rendered
  • C.   An agreement by lawyers in different firms to share the fee charged to a single client
  • D.   A standard hourly fee agreement

By rule, each of the others must be in writing.  The terms of a basic fee agreement must be communicated to a client, “preferably in writing,” but there is no requirement that the agreement be reduced to writing.  To avoid misunderstandings down the road, reducing a fee agreement to writing is best practice, even absent a rule requiring you to do so.

Question 4

Attorney called me with an inquiry.  She represents Defendant in a civil case and had a question related to some of the potential witnesses for Defendant.  I listened, then responded:  “by rule, you can make the request only if (1) the witness is a relative, employee, or agent of Defendant; or (2) if you reasonably believe that the potential witness’s interests won’t be adversely affected by agreeing to your request.”

What proposed course of conduct by Attorney do “make the request” and “your request” refer to?

Requesting a person other than a client to refrain from voluntarily giving relevant information to another party.  Rule 3.4(f); See, PRB Decision 78

Question 5

Oscar “Zeta” Acosta was a real-life attorney who practiced law in California.  In 1971, he and a famous writer took two trips to Las Vegas. On the first, the two attended the Mint 400, an off-road race that Sports Illustrated had dispatched the writer to cover.  A month later, they returned to Vegas, with the writer having been assigned by Rolling Stone to cover the National District Attorneys Association’s Conference on Narcotics and Dangerous Drugs.

The writer’s trips to Vegas with Attorney Acosta inspired a book.  In the book, a lawyer whose character is based on Acosta engages in behavior that, at the very least, would result in a referral to the Lawyers Assistance Program, if not a disciplinary prosecution.

For 1 point each, who was the writer with whom Attorney Acosta travelled to Las Vegas? And, what was the name of the character who was based on Acosta?

The writer:  Hunter S. Thompson.  The trips inspired Fear & Loathing In Las Vegas.  Acosta served as the basis for the character Dr. Gonzo.

Fear and Loathing

Update: Protecting Client Information at the U.S. Border

Two months ago, I posted Protect Client Info When Traveling Abroad.

Earlier this week, Jeff Richardson posted New information on your iPhone being searched by Customs at the border.  If you’re heading to Montreal this summer, it might be worth a read.

For those of you who reflexively avoid any tech-related post, do so at your own risk. Here’s the concluding paragraph from Jeff’s post:

  • “I wish I could conclude this post with easy answers, but it appears that there are none at the moment.  I don’t know how you should weigh the usefulness of having your iPhone and iPad with you outside of the country versus the risk that a border agent will try to search the device as you enter the country.  And remember, we are just talking about U.S. border agents right now; you may also find yourself facing an official in another country who demands access to your device and who has no regard for the Rules of Professional Conduct or the Rules of Evidence governing privilege.” (emphasis added)

By the way, Jeff’s blog is a helpful resource (think “tech competence“) for lawyers who use iPhones and iPads.

Confidential

#fiveforfriday #78: Bucky F$#*ing Dent

After a two-week hiatus, welcome back to #fiveforfriday! It’s #78 in the list of installments of the most popular legal ethics trivia game on the internet.*

*(puffery isn’t unethical.  might not be valid in AK or HI. other terms & conditions may apply.)

What’s 78 mean to me? Sadly, it’s the 2nd in a trilogy of 3 Red Sox related heart breaks on the journey from the 75th #fiveforfriday thru the 86th.

At one point in the summer of 1978, a soon-to-be 6th grader’s beloved Sox led the evil Yankees by 14 games.  They blew the lead – and then some, trailing the Bombers by 1 game with a week to go in the season.  Often lost to history, while New York finished 6-1, the Sox valiantly went 7-0 over the final week to force a one-game playoff for the AL East title.

A few things stick in my mind about the game.

It was afternoon game. Imagine that!  By then I was a full-fledged 6th grader at South Burlington Middle School.  The school day ended at 3:15. I had Mr. Newton for math, and math met in the final period.  Mr. Newton was a huge Sox fan. His fellow math teacher, and my middle school basketball coach, Mr. Culver, was a huge Yankees fan.  The two conspired to roll televisions into the classrooms and we were treated to the first inning or so of the game.  What kind of school principal would tolerate such behavior?!?!  My dad, that’s what kind.

I don’t have many specific-memories of the game.  What I do remember clearly is this:  with the Sox trailing 5-4 in the bottom of the 9th, and 2 runners on, Yaz came to the plate.  He was an icon to legions of kids in New England. My brother and I counted ourselves among the region’s scores of wiffle ball players perfectly able to imitate The Captain’s crazy left-handed batting stance.  Just as surely as we did when we hit like him in our backyards, Yaz would drive in the tying & winning runs in dramatic fashion.

He popped out.  Not only did he pop out, but it was in foul territory.  I’ll never forget the bitter sadness, a level of despair that was a rite of passage to generations of New England kids, this time accompanied by the inexplicable: our hero is mortal?

The title of this post refers to a Yankee shortstop who specialized in hitting pop flies for outs.  In a quirk of trajectory & stadium architecture, and on that blazingly sunny October afternoon in 1978, one of his pop flies sailed over the Green Monster.  Bucky “F$%*ing” Dent.

This one’s for you Hal Miller.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Hashtag it – #fiveforfriday

Question 1

By rule, a lawyer has a conflict if there is a significant risk that the representation of a client will be limited by the lawyer’s responsibilities to ________, ________ or _________, or by ___________________.

Your mission, should you choose to accept it, fill in at least ONE of the blanks. (hint: each blank is more than 1 word)

Question 2

Remaining on conflicts for a moment, a Comment indicates that ” ________  ___________ requires that each affected client be aware of the relevant circumstances of the material and reasonably forseeable ways that the conflict could have adverse effects on the interests of that client.”

Which fills in the blank verbatim?

  • A.    Dual Representation
  • B.     Informed Consent
  • C.    Continued Representation
  • D.   Conflict Waiver

Question 3

Which type of fee agreement is different from the others?

  • A.   Contingent fee agreement
  • B.   An agreement to a non-refundable fee, paid in advance, that a lawyer may treat as the lawyer’s property before any legal services are rendered
  • C.   An agreement by lawyers in different firms to share the fee charged to a single client
  • D.   A standard hourly fee agreement

Question 4

Attorney called me with an inquiry.  She represents Defendant in a civil case and had a question related to some of the potential witnesses for Defendant.  I listened, then responded:  “by rule, you can make the request only if (1) the witness is a relative, employee, or agent of Defendant; or (2) if you reasonably believe that the potential witness’s interests won’t be adversely affected by agreeing to your request.”

What proposed course of conduct by Attorney do “make the request” and “your request” refer to?

Question 5

Oscar “Zeta” Acosta was a real-life attorney who practiced law in California.  In 1971, he and a famous writer took two trips to Las Vegas. On the first, the two attended the Mint 400, an off-road race that Sports Illustrated had dispatched the writer to cover.  A month later, they returned to Vegas, with the writer having been assigned by Rolling Stone to cover the National District Attorneys Association’s Conference on Narcotics and Dangerous Drugs.

The writer’s trips to Vegas with Attorney Acosta inspired a book.  In the book, a lawyer whose character is based on Acosta engages in behavior that, at the very least, would result in a referral to the Lawyers Assistance Program, if not a disciplinary prosecution.

For 1 point each, who was the writer with whom Attorney Acosta travelled to Las Vegas? And, what was the name of the character who was based on Acosta?

the-quiz

 

The More Things Change…

Since becoming bar counsel in June 2012, I’ve handled 4,421 ethics inquiries.  By far, the most common inquiry topic has been conflicts of interest.  Questions relating to conflicts have accounted for slightly more than half of all inquiries, with “former client” conflicts constituting the largest subset within the category.  Common questions:

  • Can I take a case against a former client?
  • I represent Buyer. I’ve known Seller for years.  She wants me to represent her. Can I?
  • For the past 10 years or so, I’ve represented a couple. Business stuff, some trusts, a small PI claim, nothing that either doesn’t know about.  They’re getting divorced.  Can I represent Wife?

This morning I realized that I needed to post today.  I was too busy watching the early coverage of The British Open to concentrate, so I figured I’d cheat with a “Throwback Thursday” post.

In between putts & wayward drives, I wondered what issues bar counsel types were dealing with 50 years ago.  So, I searched “legal ethics 1967.” I figured I’d find something simple, and post “here’s what was going on a long time ago.”

The top result was a compendium of the ethics opinions issued by the Indiana State Bar Association in 1967.

Opinion 1 is the genesis of this post’s title.

(Apparently, in 1967, lawyers had yet to resolve to use 37 words when 1 would do.  So, here’s the opinion, in its entirety.)

Opinion No. 1 of 1967
Lawyer Not Forever Barred From
Taking Case Against A Former Client

The Committee was asked its opinion by an attorney whose present
client wished to bring suit against a person who at one time had
been a client of the attorney.

Mr. Henry S. Drinker, in his book Legal Ethics, at page 112, stated:
“One may sue a former client if his representation is ended and. the
matter does not involve confidential communications.” An attorney
is not forever barred from suing a former client, so long as the present
matter was not connected with, and did not arise out of, the former
employment, and so long as there is no breach of confidential information
obtained during the former attorney-client relationship.

The opinion mirrors today’s rule.

Rule 1.9 prohibits a lawyer from representing a person:

  • in the same or a substantially related matter in which the lawyer represented a former client and in which the person’s interests are materially adverse to the interests of a former client, unless the former client gives informed consent, confirmed in writing.

Even if the matters are not the same or substantially related, Rule 1.9(c) prohibits a lawyer from using or revealing information relating to the representation of a former client.

Nothing has changed.

Next, I wondered what Vermont’s hot  topics in ethics were back in the day.  The Vermont Bar Association publishes advisory ethics opinions.  The earliest available are from 1978.  (As regular reader Hal Miller knows, it was a year that shall forever live in infamy on this blog.  More on that tomorrow.)

The VBA released 3 advisory ethics opinions in 1978.  They dealt with conflicts, conflicts, and conflicts.  Two of the three involved questions I continue to receive to this day.

Opinion 78-04 concluded that it is improper to represent both buyer & seller in real estate transaction.  I agree with the conclusion.

Opinion 78-03 concluded that it is improper for a lawyer who has represented a couple to represent one in a divorce if the issues in the divorce are substantially related to the former representation of the couple.  Again, I agree.  Comment 3 to Rule 1.9 addresses this very question.

I’m not complaining. If you have questions about a potential conflict, don’t hesitate to call, text, or e-mail.  I bring it up only because I’m struck by the fact that conflicts always have been and likely always will be the most common, but trickiest, ethics issue confronted by lawyers.

Actually, let’s be honest: I bring it up mainly I needed to post a blog about something- anything! – to drive traffic towards tomorrow’s #fiveforfriday quiz.

conflict

 

 

 

 

 

Lawyers Helping Lawyers – Keep it on the Front Burner

Since I started this blog, I’ve not received more e-mails, texts, or DMs suggesting that I post about a particular topic than I have this week.  The suggestions flowed from an article that ran in Saturday’s New York Times: The Lawyer, The Addict.

Read it.

I first blogged on this topic in March 2016 with the post Lawyers Helping Lawyers.  The post referred to a study done by the ABA and the Hazeldon Betty Ford Clinic.  The study found “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”

In my post, I noted that “[e]xtrapolating from the ABA/Hazeldon study, approximately:

  • 500 active Vermont attorneys are problem drinkers
  • 500 active Vermont attorneys exhibit signs of problem anxiety
  • 720 active Vermont attorneys struggle with some level of depression.”

I added “[h]ere’s a real number, not an extrapolation: over the past 14 months, three        Vermont attorneys took their own lives.”

Pointing out that, in my experience, lawyers are often the first to know that another lawyer is struggling to cope with addiction or mental health issues, I urged lawyers not to come at this problem from the perspective of “when do I have a duty to report another lawyer?”  Instead, I argued:

  • “How about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?”

The beat goes on.

Since my post 16 months ago, 5 Vermont lawyers have been transferred to disability inactive status or placed on interim suspension as a result of substance abuse and/or mental health issues.  For those 5 lawyers, help came too late not to involve the disciplinary process.

Whatever we do to address this problem, we need to make sure it includes spreading the word that it is no longer sufficient to wait to refer someone to help until he’s hospitalized or her practice has cratered.  Refer early.  Not to save clients from harm, but to help a fellow human being get into recovery or treatment.

After the NYT article ran this weekend, some wonderful, caring lawyers engaged me in social media conversations on the need to do better as a profession on this issue. I love that they were involved and I thank each and every one of them.

We need to do more.  The fact that “talking about it on social media” is a positive step shows how far we have to go.

My original post includes links to resources:

  • “Help is available.”Contact the Vermont Lawyers Assistance Program. It’s confidential and the volunteers are exempt from the reporting requirement in Rule 8.3.  Josh Simonds is the Director and is an excellent resource. A referral to Josh’s program will not result in a referral to the disciplinary prosecutors.

    “Or, call me.  It’s confidential. I can refer an attorney to the LAP program or to one of the PRB’s assistance panels. The panels, in turn, have the authority to refer a lawyer to LAP or to any type of counseling.  I CANNOT refer the attorney to the disciplinary office.

    Or, visit the website for the ABA Commission on Lawyer Assistance Programs.”

Beyond encouraging you to refer lawyers in need to help, other things I think we need to do:

  • Figure out how to fund the Vermont Lawyers Assistance Program
  • Decouple discipline/reporting from treatment/referrals
  • Seminars on how to help, where to turn
  • CLE in recognizing the signs & symptoms of alcohol/drug abuse & mental health conditions
  • Understanding that, if help arrives early, the lawyer will not lose his or her law license

There’s probably a lot more to do.  These would just be a start.

We cannot let the topic fade into the background.  The numbers prove that lawyers need help now.  We must provide it.

As a profession, we’ve gone on & on for years about “access to justice” and haven’t come close to solving that problem.  In my book, “access to justice” necessarily includes “access to legal services.”   Not to just any legal services, but to competent legal services.   In that sense, this is an access issue.

Help another lawyer.  The one you help might someday return the favor.

Here are some resources:

Road to Recovery